ALBANY, N.Y., Nov 23 (Reuters) - The New York State Department of Labor was within its rights when it used a GPS device to track an employee, even after work hours and while he was on a family vacation, an appellate court has ruled.

In a 3-2 decision issued on Wednesday, the Appellate Division, Third Department, dismissed claims by Michael Cunningham, a former Labor Department employee who was fired for misconduct, that the use of the GPS device constituted illegal search and seizure.

The department fired Cunningham, who was first hired in 1980, last year, relying on GPS data to show he had submitted false expense sheets and other travel records. Cunningham sued, claiming the data should have been suppressed at his termination hearing. He demanded a new termination hearing, but not reinstatement.

The court ruled that because the device was only monitored by an investigator during work hours, its use was constitutional.

"To establish a pattern of serious misconduct, it was necessary to obtain pertinent and credible information over a period of time," Justice John Lahtinen wrote for the majority.

In dissent, Justice Edward Spain argued that while the use of a GPS device to track employees suspected of misconduct is reasonable during work hours, the scope of the use in Cunningham's case -- which included tracking him during a week-long family vacation -- was unconstitutional.

"(The Labor Department's) valid interest in (Cunningham's) whereabouts extended only to the hours of his workday, yet the device placed on (his) personal vehicle collected data 24 hours a day, seven days a week," Spain wrote.

Because the decision was split, Cunningham may appeal to the Court of Appeals without permission from the Third Department.

Cunningham's attorney, Corey Stoughton of the New York Civil Liberties Union, could not immediately be reached. A spokeswoman for the Attorney General's office did not immediately return a request for comment.

The case is Michael Cunningham v. New York State Department of Labor, New York Supreme Court, Appellate Division, Third Department No. 512036. Judge John Lahtinen wrote the majority opinion, with which Judges Robert Rose and John Egan Jr. concurred. Judge Edward Spain wrote the dissent, with which Judge Elizabeth Garry concurs.

For Cunningham: Corey Stoughton of the New York Civil Liberties Union.

For the Department of Labor: Kate Nepveu, of counsel to the Attorney General's office.

(Reporting by Dan Wiessner)

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